As a matter of law, federal courts have held that inmates do not have a constitutional
right to unrestricted telephone communication, particularly when alternate means of
communication exist.11 As a matter of policy, BOP regulations
state that inmates should be provided telephone access consistent with the requirement of
sound correctional management. According to the BOPs program statement
Telephone Regulations for Inmates, conditions and limitations may be imposed
on an inmates telephone use to ensure that itis consistent with the BOP's
correctional management responsibilities. Additionally, inmate telephone use is subject to
any limitations that individual wardens determine are necessary to ensure the security or
good order of the institution or to protect the public. Restrictions on inmate telephone
use may also be imposed as a disciplinary sanction.

The BOP has the legal authority to monitor inmate calls because courts have held that
inmates are deemed to have no legitimate expectation of privacy in their telephone
conversations. Therefore, monitoring of these conversations does not implicate the
seizure prohibitions of the Fourth Amendment. In addition, although the
federal wiretapping statute may impose greater constraints than the Fourth Amendment, that
statute states that interceptions of wire communications are permissible by an
investigative or law enforcement officer in the ordinary course of his duties. 18
U.S.C. § 2510(5)(a). Courts have generally concluded that prison officials are law
enforcement officers as defined under the wiretapping statute and that prison
monitoring occurs in the ordinary course of duties if it is conducted pursuant
to an established policy that is related to institutional security, is generally
applicable rather than directed at a particular inmate, and is made known to inmates.12

The BOPs Program
Statement entitled, Telephone Regulations for Inmates, which was codified at
28 C.F.R § 540.100 et seq., states that inmates are permitted to make at least one
telephone call each month unless they have been restricted from telephone use as the
result of an institutional disciplinary sanction. In practice, however, the BOP places no
limits on the number of telephone calls inmates can make at most facilities. As discussed
previously, inmates at most ITS institutions have unlimited calling privileges to contact
up to a maximum of 30 individuals on an approved telephone list. Inmates prepare their
proposed telephone lists during their admission and orientation process at a new BOP
facility. The institutions associate warden may authorize an inmate to have access
to more than 30 numbers in unusual circumstances.

Inmates may submit on their list telephone numbers for any person they choose, with the
understanding that all calls are subject to monitoring. Inmates are required to pledge
that any calls made from the institution will be made for a purpose allowable under BOP
policy or institution guidelines. Third party billing and electronic transfer of a call to
a third party are prohibited.

Normally, telephone numbers requested by the inmates are approved without review. When
inmates request persons other than immediate family members or persons already on their
visiting list,13 BOP staff are required to notify those
persons in writing to afford them an opportunity to object to being placed on an
inmates telephone list. Other than notification, however, no screening of these
individuals or other investigative effort is made.

BOP regulations direct wardens to refer incidents of unlawful inmate telephone use to
law enforcement authorities. According to BOP regulations, telephone misuse
refers to such things as using the telephone to intimidate a potential witness or for
other criminal purposes. Using another inmates phone access code (PAC) or providing
a PAC to another inmate is considered misuse and is subject to discipline.
Inmates who violate the telephone rules may have their privileges restricted or revoked.

Each warden is required by BOPs program statement to establish procedures to
enable monitoring of inmate telephone conversations on any telephone located within the
institution. The term monitoring is not defined in the BOP program statement,
so it is not clear whether this means recording of calls or live-monitoring by the BOP
staff. AccordingtotheBOPs program statement, the
purpose of monitoring is to preserve the security and orderly management of the
institution and to protect the public.

InallBOPfacilities, a notice is placed on inmate
telephones advising the user that all conversations are subject to monitoring. Use of the
telephones by inmates, therefore, constitutes their consent to this monitoring.14 Inmate calls to attorneys are an exception to this rule and will
not be monitored by BOP staff if the inmate follows proper procedures, established by the
warden at each institution, to arrange and place attorney calls.

BOP Headquarters has not issued any policy detailing how much live
monitoring or review of recorded calls staff at each institution should conduct.
Rather, determinations about the amount and methods of monitoring are left to individual
wardens. Some institutions have remote monitoring locations. At these locations, officers
randomly listen to some calls as they are occurring. This monitoring is in addition to
their regular duties. Most of these institutions requirethe officers to monitor a
minimum number  usually five  telephone calls during their shift. The officers
are required to fill out a form describing the content ofeach monitored call and
submit these reports to the institutions SIS office. The SIS offices are supposed to
review the reports and decide if any further action is required.

Most institutions without remote monitoring locations have established a fixed
listening post where a staff member assigned as the telephone monitorlistens toinmatecalls in addition to other duties, such as reviewing inmate mail. This
telephone monitor normallyworks only during the day shift. However, wardens at
several institutions have assigned a telephone monitor to the evening shift as well.

The BOP has specific policies covering
the discipline of inmates whose behavior is not in compliance with BOP rules. Depending on
the severity of the violation, improper inmate conduct can be handled in-house
as an institutional disciplinary matter resulting in the restriction or revocation of an
inmates privileges or segregation of the inmate from the general prison population.
Suspected criminal violations by inmates are referred to the FBI or other law enforcement
agencies for investigation and can result in both criminal charges and administrative
sanctions.

The BOP organizes prohibited acts by inmates into four categories and
assigns each category a code:

Unauthorized use of the telephone is currently designated a Low Moderate
violation  the lowest category of prohibited acts  with the appropriate
sanction being a loss of privileges, such as telephone, commissary, or visiting
privileges. Low Moderate violations may be resolved informally, which means that there may
be no record of the violation. Informal resolution can take place between the inmate and
the inmates unit team  a group of BOP employees who oversee the inmates
adjustment, work assignments, and other behavior in a housing unit.

According to the BOPs disciplinary policies, inmates who repeatedly violate BOP
rules can receive increased sanctions. For example, if an inmate commits a second
violation in the Low Moderate category within six months of the first violation, the
inmate can receive a sanction appropriate for the offense (such as loss of telephone
privileges) plus segregation for up to seven days and forfeiture of earned good
time of up to 10 percent or 15 days. A third violation in the Low Moderate category
raises the recommended sanction to that available for violation of Moderate (level 300)
offenses, such as delay of a parole date, loss of good time of up to 25 percent or 30
days, or segregation for up to 15 days. However, if prior offenses have been resolved
informally, they cannot be considered for the purpose of increasing an inmates
punishment based on repeated acts.

In response to concerns about the informal resolution and limited sanctions for
telephone abuse violations that fall into the Low Moderate category, in December 1997 the
BOP Executive Staff approved raising the severity level for inmate telephone abuse from
Low Moderate (level 400) to Greatest (level 100) when a crime is
committed with the telephone and to High (level 200) when a criminal offense
is not involved. The proposed change is not yet in effect. The regulations needed to
implement this change were not published in the Federal Register until early 1999, and the
comment period closed in April 1999. (See Chapter Six, Section IV, D and Chapter Seven,
Section IV for a discussion of this issue.)

In its Special Investigative Supervisors
Manual (SIS Manual), the BOP encourages a proactive approach to deterring criminal
conduct by inmates. The SIS Manual directs SIS staff to use threat analysis, risk
assessment, analysis of connections between inmates, and intelligence sources to prevent
illegal conduct by inmates while still in the planning stage. The manual also states that
the SIS should determine which inmates are engaged in activities that pose a threat to the
welfare of the community. The SIS Manual provides examples of how the current version of
ITS can assist staff in this task.

In August 1997, the Intelligence Section at BOP Headquarters issued an Inmate Telephone
Monitoring field guide for wardens and SIS staff. The guide states that one of the
BOPs primary concerns is to ensure that inmates who were convicted for playing
leadership roles in major drug trafficking organizations do not continue their criminal
operations using prison telephones. The guide stresses that inmates should not be
permitted to talk on the telephone when they should be at their job or educational
assignments. The guide notes that some inmates may require reassignment from orderly jobs
or similar positions that provide them a great deal of flexibility and autonomy so that
their time is more fully engaged. The guide also cautions against permitting a small
number of inmates to dominate the telephones.

In addition, the guide suggests that population profiling should be a major
component of an institutions monitoring operations. For example, the guide
acknowledges that it is not possible for staff to consistently listen to 100 percent of
inmate calls. For this reason, the guide states thatany inmate telephone
monitoring shouldplace the highest priority on identifying and tracking inmates
with the greatest likelihood of using their telephone privileges to engage in criminal or
illicit activity. Inmates identified as having a high likelihood of engaging in crime
while incarcerated, such as drug dealing and escape plots, should be targeted and their
telephone conversations subject to intense review.

13 A visiting list is a list of
individuals who are approved to visit a specific inmate at his institution. Each inmate
submits a list of proposed visitors. After "appropriate investigation," BOP
staff compile a visiting list for each inmate and distribute it to the inmateand visiting
room officer. Staff may request background information from potential visitors who are not
immediate family members before including them on the approved visiting list. When little
or no information is available on the potential visitors, visiting may be denied pending
receipt and review of necessary information, including information that is available about
the inmate or the inmate's offenses. At medium and high security level and administrative
institutions, staff are expected to obtain background information from potential visitors
who are not immediate family members.

14 18 U.S.C. Section 2511(c) permits
interception oftelephonecommunicationswiththe consent ofone party to the communication. Many courts have held that prison monitoring is exempt
under the federal wiretapping statute because inmates voluntarily choose to make telephone
calls with the knowledge that they can be recorded. See,e.g.United
States v. Workman, 80 F.3d 688, 693 (2d Cir. 1996); Opinion of Office of Legal Counsel
reDisclosure of Recorded Inmate Telephone Conversations by the Bureau of Prisons (January
14, 1997). Other courts have rejected this reasoning, arguing that the consent is not
voluntary because inmates have no choice other than to forego telephone privileges
entirely. SeeLandon v. Hogan, 71 F.3d 930, 936 (1st Cir. 1995)